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2018 DIGILAW 341 (JHR)

Dinesh Sao v. State of Jharkhand

2018-02-08

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : Heard the parties. 2. This appeal has been preferred by the appellant against the judgment of conviction dated 17.07.2017 and order of sentence dated 27.07.2017 passed by the Additional Sessions Judge-II, Hazaribagh, in S.T. No. 461 of 2007, whereby and whereunder, the court below has convicted the sole appellant for the offence punishable under section 498A, 307/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and sentenced him to undergo S.I. for one year with fine for the offence under Section 498A of the Indian Penal Code, S.I. for four years with fine for the offence under Section 307 of the Indian Penal Code and sentenced him to undergo S.I. for one year with fine for the offence under Section 4 of the Dowry of Prohibition Act. All the sentences were directed to run concurrently. 3. The case of the prosecution, in brief, is that the informant victim was married to the appellant six years prior to the date of occurrence. The appellant and his relatives used to demand cash of Rs. 50,000/-, one colour T.V., one almirah from the informant after marriage, which the parents of the victim-informant were unable to fulfill. It is further alleged that on 3.5.2007 at about 6:30pm when the victim was in the kitchen, on the instruction of her father-in-law, her elder brother-in-law (Mukesh Sao), elder Gotni-Babita Devi, niece-Sima Kumari and her husband (the appellant), with an intention to kill her (the informant), poured kerosene oil upon her and set her on fire upon which she raised alarm. Thereafter, the nearby neighbours came there. The informant victim sustained burn injury and was admitted to Hazaribagh Hospital where the police recorded her fardbeyan and on the basis of the same, Katkamsandi (Pelawal OP) P.S. Case No. 119 of 2007 was registered for the offences punishable under Sections 341, 342, 504, 498A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act and the police took up investigation of the case. 4. After completion of the investigation, police submitted charge sheet against the appellant and the other accused persons for the offences punishable under Sections 342, 307, 504, 498A of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act and supplementary charge sheet was also submitted against accused Mukesh Sao and Babita Devi. 4. After completion of the investigation, police submitted charge sheet against the appellant and the other accused persons for the offences punishable under Sections 342, 307, 504, 498A of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act and supplementary charge sheet was also submitted against accused Mukesh Sao and Babita Devi. After framing of charge for the offences punishable under Sections 342, 307, 504, 498A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the accused appellant on 7.1.2008, separate charges were also framed against the accused Mukesh Sao and Babita Devi in S.T. No. 309 of 2008 for the said offences. Vide order dated 4.8.2008, the record of the accused Mukesh Sao and Babita Devi was amalgamated with the present case. 5. In support of its case, the prosecution has altogether examined 7 witnesses including two Investigating Officers of the case and the doctor who treated the victim informant. 6. P.W.4-Archana Devi is the victim informant of the case. She has stated that about one and half years after her marriage, the appellant and his relatives used to assault her in connection with demand of cash of Rs. 50,000/-, T.V. and almirah. On 3.5.2007 at about 6:00pm her father-in-law, husband and other relatives caught hold of her from back side and the appellant, who is the husband, poured kerosene oil upon her and set her on fire and left the place. She somehow doused water upon herself and fell down and became unconscious. She was brought to the hospital. In her cross-examination, she has stated that the appellant does work of preparing and selling bakery products and she also used to help him in the said work. She is unable to say the date, month or year on which the demand of dowry was made and she was assaulted. At the place of occurrence, her daughter was also present. She does not know who took her to the hospital. She has further stated that during her treatment her in-laws were present in the hospital. By mutual consent the appellant has dissolved the marriage and she has no grievance against the appellant and other accused persons. At the place of occurrence, her daughter was also present. She does not know who took her to the hospital. She has further stated that during her treatment her in-laws were present in the hospital. By mutual consent the appellant has dissolved the marriage and she has no grievance against the appellant and other accused persons. In paragraph-11, she has stated that after regaining sense at 11/12 hours at midnight in the hospital, she called the appellant and her mother-in-law and told them to call her brother and after regaining sense, she never became senseless. 7. P.W.1- Surendra Sah @ Suresh Sah, who is the own brother of the victim informant, is a hearsay witness so far as the occurrence of 3.5.2007 is concerned. This witness has stated about the demand of dowry of Rs. 50,000/-, colour TV and almirah. He also stated that after getting information that P.W.r has been burnt, he went to Hazaribagh hospital where P.W.4 was admitted. There she narrated him about the incidence. 8. P.W.2 – Gopal Sah, who is another brother of the informant, is also another hearsay witness. This witness has stated that he went to the hospital and saw P.W.4 admitted, who narrated him about the incidence. 9. P.W.3 – Triloki Sah, who is the own uncle of the informant, is also hearsay witness. 10. P.W.5 – Sewa Bhagat is the first I.O. of the case. This witness has stated about the investigation done in this case and in his statement, he has also narrated the place of occurrence. Having been transferred on 21.7.2007, he handed over the charge to the Officer In-charge of the said police station. In paragraph-7 of his cross-examination, he has stated that the roof of the kitchen was covered by Asbestos sheet which was found to be broken. One witnesses-Sudhir Paswan has stated that the victim on being angered has bolted the kitchen door from inside and put herself on fire but while burning she raised alarm and then Asbestos sheet of the kitchen was broken and she was taken out and was rushed to the hospital. In paragraph-10 of his cross-examination, P.W.5 has stated that witness-Mahendra Paswan stated before him that the victim after bolting the kitchen door from inside put herself on fire and while burning, she raised alarm. In paragraph-10 of his cross-examination, P.W.5 has stated that witness-Mahendra Paswan stated before him that the victim after bolting the kitchen door from inside put herself on fire and while burning, she raised alarm. Mahendra Paswan and others went there and saw the appellant breaking Asbestos sheet of the kitchen and entering inside the kitchen through the broken roof. He also saw the appellant dousing the flame by throwing water and covering the body of the victim with cloth. After the fire was extinguished, lock of the grill was opened and the victim was taken to sadar hospital and that the appellant reported the matter to the police. In paragraph-12, P.W.5 has stated that the victim has doubt that the appellant was having illicit relationship with any other lady and for that there was often quarrel between them. 11. P.W. 7- Tewaran Uraon is the second I.O. of the case. He has stated that he has submitted the charge-sheet against the appellant and other accused person. In paragraph-2 of his cross-examination, he has stated that witnesses Kedar Sao, Antu Ravidas and Jagdish Sao in their statements have deposed that they never heard about the demand of dowry made by the appellant and other accused persons. They heard that the victim while cooking bolted the kitchen door from inside and put herself on fire but when she began burning, she raised alarm and thereafter Asbestos sheet of the kitchen was broken and she was taken out and was rushed to the hospital by the appellant and the other accused persons. 12. P.W.6- Dr. Amitabh Ganguly is the Medical Officer, who examined the victim on 3.5.2007 and found the burn injury over the face, neck, part of the scalp, chest and both hands grievous in nature, caused by dry flame. He also found smell of kerosene. Both areas were having superficial burns. Burn in some area was deep in nature. Age of the injury was within four hours. The injury report on being proved by the PW6 has been marked as Ext.1. 13. He also found smell of kerosene. Both areas were having superficial burns. Burn in some area was deep in nature. Age of the injury was within four hours. The injury report on being proved by the PW6 has been marked as Ext.1. 13. After conclusion of evidences of the prosecution, the statements of the appellant and the other accused persons under Section 313 Cr.P.C were recorded wherein they were put questions regarding the circumstances appearing in evidence against them and the appellant denied the allegation of demand of dowry and the allegation of treating the victim with cruelty and also denied the factum of setting the victim on fire and he answered that the occurrence of burning of the victim took place in his house and pleaded innocence. 14. Though no witness was examined on behalf of the defence but the defence proved four documents i.e. certified copy of the final order and the decree passed in M.T. S. Case No. 249 of 2015 which were marked as Ext.A and A/1 respectively; order-sheet of M.T.S. Case No. 249 of 2015 which was marked as Ext.B and certified copy of the order dated 21.4.2015 passed in Maintenance Case No. 89/08 which was marked as Ext.C. 15. After taking into consideration the evidence available on record, the learned court below observed that on 16.1.2013 the informant and the accused persons of the case filed the joint compromise petition in which the victim informant has stated that she has compromised the case with the accused persons and is not interested to continue with the case and prayed to pass appropriate order. As the offence punishable under Section 342 of the Indian Penal Code is compoundable in nature, the accused appellant was acquitted under Section 320(8) Cr.P.C. for the allegation under Section 342 of the Indian Penal Code, on the basis of compromise. As the offence punishable under Section 342 of the Indian Penal Code is compoundable in nature, the accused appellant was acquitted under Section 320(8) Cr.P.C. for the allegation under Section 342 of the Indian Penal Code, on the basis of compromise. The learned court below has also observed that P.W.4 in her deposition has not taken the name of accused Mukesh Sao to be her assailant on 3.5.2007 and about Babita Devi the learned court below observed that P.W.4 in her fardbeyan has stated that on the saying of accused Mukesh Sao, Babita Devi poured kerosene oil upon her and set her on fire whereas in her deposition she has stated that Babita Devi has caught hold her from back side whereas other witnesses have stated that Babita and others poured kerosene oil upon the victim and set her on fire. Hence, there is doubt about the presence of accused Mukesh Sao and Babita at the place of occurrence and also about their involvement in the incident. Hence, the court below held that the offence punishable under Section 342 and 307 of the Indian Penal Code is not made out against Mukesh Sao and Babita Devi. Similarly, in respect of the offence punishable under Section 498A of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act, the learned court below has observed that P.W.4 in her deposition has not taken the name of Mukesh Sao and moreover, P.Ws. 1 and 2 have also not supported the allegation of demand of dowry against Mukesh Sao and Babita. Hence, the learned court below has found that the prosecution has not been able to prove the charge under Section 498A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act against Mukesh Sao and Babita and the prosecution has also failed to prove the charge made under Section 3 of the Dowry Prohibition Act against these accused persons and thereby acquitted them of the charge under Section 504 of the Indian Penal Code. On the basis of the evidence on record, the appellant having been found guilty was convicted and sentenced by the Trial Court below, as indicated above. 16. On the basis of the evidence on record, the appellant having been found guilty was convicted and sentenced by the Trial Court below, as indicated above. 16. Learned counsel for the appellant submitted that the learned court below failed to take note of the fact that P.W.4 is the only eye witness to the occurrence, who has stated that the appellant has also caught hold of her from back side along with others and after pouring kerosene oil, all the accused persons set her on fire. So it is highly improbable that in such a situation the victim could have saved herself and thereafter became senseless and it is equally highly improbable that under such situation the victim would have been taken to the hospital, had the appellant been having the intention to kill her. It is further submitted that the way the prosecution has put forth its case by withholding the material witnesses namely, Kedar Sao, Antu Ravidas and Jagdish Sao, who are the natural witnesses being the residents of the place nearby the place of occurrence and whose statements were recorded by the I.O., itself speaks about the falsity of the prosecution case, in view of the fact that had they been brought to the witness box, they would have revealed the facts. Thus, keeping in view the variations in the statements of the sole eye witness-P.W.4 from her earlier statement in the fardbeyan, her deposition does not appear to be natural one and certainly is of not character basing upon which conviction of the appellant for the offence punishable under Section 307 of the Indian Penal Code can be made hence his such conviction is patently illegal. It is also submitted that a doubt is also created in view of the fact that P.W.4 in her deposition has said that her minor daughter was beside her at the time of occurrence but no explanation is forthcoming as to what happened to the said minor child; whether she has also sustained any injury or not. It is also improbable that had there been so many accused persons in a small kitchen, which was locked from inside, after pouring of kerosene oil upon the victim and setting her on fire, none of the accused would have sustained any injury. It is also improbable that had there been so many accused persons in a small kitchen, which was locked from inside, after pouring of kerosene oil upon the victim and setting her on fire, none of the accused would have sustained any injury. It is further submitted that the I.O. found the Asbestos roof of the kitchen broken and this fact is corroborated by the statements of the nearby residents to the effect that the appellant after breaking the roof, entered into the kitchen and after pouring water, he rescued her and by opening the lock of the grill from inside, he took the victim immediately to the hospital and immediately intimated the police about the occurrence and thus, the conduct of the appellant goes in favour of the innocence of the appellant. It was also submitted that once the learned court below has disbelieved the testimony of P.W. 4 about the involvement of co-accused persons, particularly Babita Devi, there was no reason why the said benefit of doubt should not have been extended to the appellant as well. Hence, it is submitted by the learned counsel for the appellant that it is a fit case where the appellant be acquitted of the charges, by giving him the benefit of doubt. 17. Learned Addl. Public Prosecutor on the other hand defended the impugned order and submitted that P.W.4, who is injured witness, has categorically stated about the involvement of the appellant in the commission of the offence for which he has been convicted and sentenced and her testimony has also been corroborated by the testimony of the doctor P.W.6 who examined the victim after the occurrence. P.Ws. 1, 2 and 3 have also supported the case of the prosecution. Hence, the appellant having rightly been convicted and sentenced by the court below the same does not warrant interference of this Court and the same be confirmed and the appeal being without merit be dismissed. 18. P.Ws. 1, 2 and 3 have also supported the case of the prosecution. Hence, the appellant having rightly been convicted and sentenced by the court below the same does not warrant interference of this Court and the same be confirmed and the appeal being without merit be dismissed. 18. Having heard learned counsel for the parties and perusal of the record reveals that this is a case where the police during investigation recorded the statements of the witnesses of neighbourhood of the place of occurrence house, who stated about the innocence of the accused persons and have even categorically stated that the victim informant herself has bolted the kitchen door from inside and put herself on fire and on her alarm being raised, the appellant and other accused persons rescued her after breaking Asbestos sheet of the kitchen. This fact corroborates the statement of the I.O. that at the place of occurrence, he saw the Asbestos sheet of the kitchen was broken. No explanation is forthcoming from the prosecution as to how the said Asbestos sheet of the kitchen was broken. It also appears improbable that had so many persons after catching hold of one single victim lady poured kerosene oil and set her on fire, she would not receive fatal injury. Similarly it is highly improbable that if the appellant had the intention to murder the informant he would have saved her by rushing her to the hospital immediately after the occurrence. The conduct of the appellant in informing the police immediately after the occurrence is also a factor which points towards the innocence of the appellant. The presence of the minor daughter of the victim informant and the appellant at the place of occurrence as stated by the P.W.4 is also highly improbable. This also creates doubt about the testimony of P.W.4. Further, though the statement of the victim was recorded in MTS Case No. 249 of 2015 but perusal of Ext.A reveals that she has not stated anything about this occurrence. 19. The duty of the prosecution is not to place materials which would ensure conviction. The duty of the prosecution is to place complete materials before the Court and it is for the Court to decide whether the evidence indicates the guilt of the accused or innocence of the accused. Finding out the truth is the ultimate aim of any trial. The duty of the prosecution is not to place materials which would ensure conviction. The duty of the prosecution is to place complete materials before the Court and it is for the Court to decide whether the evidence indicates the guilt of the accused or innocence of the accused. Finding out the truth is the ultimate aim of any trial. Therefore, this is a fit case whether the trial Court should have drawn adverse inference for non-examination of the independent witnesses of the locality, whose statements were recorded by police during investigation but they were withheld from the witness box. 20. Considering the facts and circumstances of the case, I am of the considered opinion that the prosecution has not been able to bring home the charge against the sole accused appellant beyond all reasonable doubts and in the facts of the case, the accused appellant was entitled to the benefits of doubt hence he is acquitted of the charges. 21. Accordingly, the impugned judgment of conviction dated 17.07.2017 and order of sentence dated 27.07.2017 passed by the Additional Sessions Judge-II, Hazaribagh, in S.T. No. 461 of 2007, being not sustainable in law, are set aside. Since the appellant is on bail, in view of his acquittal, he is discharged from the liability of his bail bond. 22. Let the original lower court records be sent back to the Court concerned forthwith, along with a copy this Judgment. 23. In the result, this appeal is allowed. Appeal allowed.